Yesterday the Article 370 of the Indian Constitution was abolished when the Lok Sabha approved a presidential resolution abolishing the Article invoking the provision of clause 3 of Article 370. The resolution got more vote than the strength of NDA, which means several opposition parties voted for it.
Congress party had opposed the move, and in doing so, they had even resorted to misinterpretation that the Article 370 is permanent and it can’t be revoked. Participating in the debate on the resolution, senior Congress leader Manish Tewari argued that clause 3 of the Article 370 implies that it was meant to be permanent. He had read out the clause 3, which reads:
Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
This clause means that the president may revoke the Article 370, but a recommendation of the Constituent Assembly is required to do so.
He argued that this provision was kept to give the Article 370 a permanency, as the Constituent Assembly does not exist anymore, which was dissolved in 1957. His argument is that since the Constituent Assembly does not exist to approve the abolition of Article 370, this Article is permanent.
Manish Tewari made only selective reading to mislead the house and country to claim that Article 370 is permanent, which is not correct.
First, the Article 370 itself is included in the part of Part XXI of the constitution, which is titled Temporary and Transitional provisions. This means, every article included in Part XXI, are supposed to be temporary and transitional, they are never meant to be permanent like the Congress leader was claiming. Even the first prime minister of India and Congress leader Jawaharlal Nehru had said that Article 370 is temporary.
Article 370 was temporary, because it was created to apply provisions of Indian constitution selectively in the state till the time the state constitution was ready, and it was supposed to be abolished after preparation of the Jammu and Kashmir constitution. But the Constituent Assembly dissolved itself in 1957 without recommending removal of Article 370, and it remained in the constitution.
Every article of the constitution is India can be amended using due process, even its preamble was amended during the emergency by Indira Gandhi government, so it is completely wrong to say that Article 370 is permanent. The fact that requirement of approval of a non-existing Constituent Assembly was there to abrogate it was an anomaly, which should have been corrected long ago.
Just like everything in the constitution, including the preamble, can be amended, the requirement of abolishing an Article also can be amended, which was done using the constitutional provisions itself by the government.